Should we really have clients recount traumatic events in detail in mediation? Or is that actually a disservice to clients? Are we reinforcing fear, and sidetracking settlement? Or are we helping clients move past the trauma?

According to recent studies, recalling a traumatic event shortly after the event occurs does not unburden us — it causes additional stress and fear. And, memories are not pristine — they change over time. In a recent Wired Magazine article entitled, The New Science of Forgetting, Jonah Lehrer explains the neuroscience behind these concepts. Dating back to the Greeks, we have believed that memory is a stable form of information that does not change – an impressions in wax. In 1983, a technique called Critical Incident Stress Debriefing (CISD) became widely used in many contexts, including 9/11. People who survived a traumatic event would recall the event for 3 hours in a seven-step process. The theory was that recalling the traumatic event would help the person forget the event. After noticing trauma victims decline following CISD, scientists reevaluated this technique and found that survivors of disasters who received the treatment were 3 times more likely to suffer from depression or PTSD. Just recently, some psychologists have changed course and now recommend we discontinue CISD for disaster survivors.

Here is what they have learned. The seven-step CISD technique assumes that memories are formed and remain the same over time. However, neuroscientists have recently discovered that the cells in the brain constantly reconfigure and update memories, according to what information is useful and relevant for the future. If we try to solidify a traumatic event shortly after the event, we are actually reinforcing all of the negatives associated with the event, including sweaty palms, heart palpitations, visual images, causing additional fear, stress and trauma. Each time we recall an event, the cells in the brain reorganize, actually altering the memory, and perhaps making it worse.

So, what does this mean for lawyers and mediators?

Think and take care when asking a client to recall a traumatic event, even though time has passed. I remember mediating a case with a man who was in a truck accident that nearly killed him. He was sleeping in the sleeper of a semi when the other driver fell asleep. The truck overturned and was engulfed in flames. He remembered being trapped in the cab of the semi, pinned under a portable refrigerator. I could quickly see that recounting the accident was extremely upsetting to him, so I changed the focus of the conversation. His attorney probably didn’t really notice — I never asked. I knew that the insurance company would never pay him enough to compensate him for his view of the trauma caused, particularly if he continued recalling the event. Creating fear and anxiety in him was not helpful to him or to settlement.

Likewise, in other highly emotional mediations — which is a significant portion of my mediation practice — I am extremely careful about having clients recall their traumatic experiences. Intuitively, I can see when it is not helpful. And, now I partially understand why. I have long believed that most people do not lie. They simply have differing perspectives. However, in fact, memories are contained in changing brain cells that are not static and stable. In fact, scientists now believe they can target certain specific memories and assist us in forgetting those memories. It is not Eternal Sunshine of the Spotless Mind, in that all memories are not erased, but, interestingly, they believe we can now erase specific memories. More importantly, if we know that asking about traumatic events can actually cause additional fear, and if we realize that memories are not necessary right or wrong, perhaps we can be more helpful as professionals.